COMPANIES (AMENDMENT) ACT 1990

1. Definitions. 2. Power of court to appoint examiner. 3. Petition for court. 4. Related companies. 5. Effect of petition to appoint examiner petition on creditors and others. 6. Effect on receiver or provisional liquidator of order appointingexaminer. 7. Powers of an examiner. 8. Production of documents and evidence. 9. Further powers of court. 10. Incurring of certain liabilities incurred examiner. 11. Power to deal with charged property, etc. 12. Notification of appointment of examiner. 13. General Provisions as to examiners. 14. Information to be given when examiner appointed. 15. Examination of affairs of company. 16. Examiner's report. 17. Hearing of matters arising from examiner's report. 18. Further report by examiner. 19. Examiner's report under section 18. 20. Repudiation of certain contracts. 21. Appointment of creditors' committee. 22. Contents of proposals. 23. Consideration by members and creditors of proposals. 24. Confirmation of proposals. 25. Objection to confirmation by court of proposals. 26. Cessation of protection of company and termination of appointment of examiner. 27. Revocation. 28. Disqualification of examiners. 29. Costs and remuneration of examiners. 30. Publicity. 31. Hearing of proceedings otherwise than in public. 32. No lien over company's books, records etc. 33. Civil liability of persons concerned for fraudulent trading of company.
AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS.
[29th August, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: COMPANIES (AMENDMENT) ACT 1990 - SECT 1
Definitions.
1.-In this Act, unless the context otherwise requires-
"the Companies Acts" means the Principal Act, and every enactment
(including this Act) which is to be construed as one with that
Act;
"examiner" means an examiner appointed under section 2;
"interested party", in relation to a company to which section 2 (1)
relates, means-
( a ) a creditor of the company,
( b ) a member of the company;
"the Minister" means the Minister for Industry and Commerce;
"the Principal Act" means the Companies Act, 1963. COMPANIES (AMENDMENT) ACT 1990 - SECT 2
Power of court to appoint examiner.
2.-(1) Where it appears to the court that-
( a ) a company is or is likely to be unable to pay its debts,
and
( b ) no notice of a resolution for the winding-up of the company
has been given under section 252 of the Principal Act more than 7
days before the application hereinafter referred to, and
( c ) no order has been made for the winding-up of the company,
it may, on application by petition presented, appoint an examiner to
the company for the purpose of examining the state of the company's
affairs and performing such duties in relation to the company as
may be imposed by or under this Act.
(2) Without prejudice to the general power of the court under
subsection (1), it may, in particular, make an order under this
section if it considers that such order would be likely to
facilitate the survival of the company, and the whole or any part
of its undertaking, as a going concern.
(3) For the purposes of this section, a company is unable to pay
its debts if-
( a ) it is unable to pay its debts as they fall due,
( b ) the value of its assets is less than the amount of its
liabilities, taking into account its contingent and prospective
liabilities, or
( c ) section 214 ( a ) or (b) of The Principal Act applies to
the company.
(4) In deciding whether to make an order under this section the
court may also have regard to whether the company has sought from
its creditors significant extensions of time for the payment of its
debts, from which it could reasonably be inferred that the company
was likely to be unable to pay its debts. COMPANIES (AMENDMENT) ACT 1990 - SECT 3
Petition for court.
3.-(1) Subject to subsection (2), a petition under section 2 may be
presented by-
( a ) the company, or
( b ) the directors of the company, or
( c ) a creditor, or contingent or prospective creditor (including
an employee), of the company, or
( d ) members of the company holding at the date of the
presentation of a petition under that section not less than one
tenth of such of the paid-up capital of the company as carries at
that date the right of voting at general meetings of the company,
or by all or any of those parties, together or separately.
( 2 ) ( a ) Where the company referred to in section 2 is an
insurer, a petition under that section may be presented only by the
Minister, and subsection (1) of this section shall not apply to the
company.
( b ) Where the company referred to in section 2 is the holder
of a licence under section 9 of the Central Bank Act, 1971, or
any other company supervised by the Central Bank under any
enactment, a petition under section 2 may be presented only by the
Central Bank, and subsection (1) of this section shall not apply to
the company.
(3) A petition presented under section 2 shall-
( a ) nominate a person to be appointed as examiner, and
( b ) be supported by such evidence as the court may require for
the purpose of showing that the petitioner has good reason for
requiring the appointment of an examiner, and
( c ) where the petition is presented by any person or persons
referred to in subsection (1) ( a ) or (b), include a statement
of the assets and liabilities of the company (in so far as they
are known to them) as they stand on a date not earlier than 7
days before the presentation of the petition.
(4) A petition presented under section 2 shall be accompanied-
( a ) by a consent signed by the person nominated to be examiner,
and
( b ) if proposals for a compromise or scheme of arrangement in
relation to the company's affairs have been prepared for submission
to interested parties for their approval, by a copy of the
proposals.
(5) The court shall not give a hearing to a petition under section
2 presented by a contingent or prospective creditor until such
security for costs has been given as the court thinks reasonable,
and until a prima facie case for the protection of the court has
been established to the satisfaction of the court.
(6) The court shall not give a hearing to a petition under section
2 if a receiver stands appointed to the company the subject of the
petition and such receiver has stood so appointed for a continuous
period of at least 14 days prior to the presentation of the
petition.
(7) On hearing a petition under this section, the court may dismiss
it, or adjourn the hearing conditionally or unconditionally, or make
any interim order, or any other order it thinks fit.
(8) Without prejudice to the generality of subsection (7), an
interim order under that subsection may restrict the exercise of any
powers of the directors or of the company (whether by reference to
the consent of the court or otherwise).
( 9 ) ( a ) Where it appears to the court that the total
liabilities of the company (taking into account its contingent and
prospective liabilities) do not exceed £250,000, the court may, after
making such interim or other orders as it thinks fit, order that
the matter be remitted to the judge of the Circuit Court in whose
circuit the company has its registered office or principal place of
business.
( b ) Where an order is made by the court under this subsection
the Circuit Court shall have full jurisdiction to exercise all the
powers of the court conferred by this Act in relation to the
company and every reference to the court in this Act shall be
construed accordingly.
( c ) Where, in any proceedings under this Act which have been
remitted to the Circuit Court by virtue of this subsection, it
appears to the Circuit Court that the total liabilities of the
company exceed £250,000, it shall make, after making such interim
orders as it thinks fit, an order transferring the matter to the
court. COMPANIES (AMENDMENT) ACT 1990 - SECT 4
Related companies.
4.-(1) Where the court appoints an examiner to a company, it may,
at the same or any time thereafter, make an order-
( a ) appointing the examiner to be examiner for the purposes of
this Act to a related company, or
( b ) conferring on the examiner, in relation to such company, all
or any of the powers or duties conferred on him in relation to
the first-mentioned company.
(2) In deciding whether to make an order under subsection (1), the
court shall have regard to whether the making of the order would
be likely to facilitate the survival of the company, or of the
related company, or both, and the whole or any part of its or
their undertaking, as a going concern.
(3) A related company to which an examiner is appointed shall be
deemed to be under the protection of the court for the period
beginning on the date of the making of an order under this section
and continuing for the period during which the company to which it
is related is under such protection.
(4) Where an examiner stands appointed to two or more related
companies, he shall have the same powers and duties in relation to
each company, taken separately, unless the court otherwise directs.
(5) For the purposes of this Act, a company is related to another
company if-
( a ) that other company is its holding company or subsidiary; or
( b ) more than half in nominal value of its equity share capital
(as defined in section 155 (5) of the Principal Act) is held by
the other company and companies related to that other company
(whether directly or indirectly, but other than in a fiduciary
capacity); or
( c ) more than half in nominal value of the equity share capital
(as defined in section 155 (5) of the Principal Act) of each of
them is held by members of the other (whether directly or
indirectly, but other than in a fiduciary capacity); or
( d ) that other company or a company or companies related to
that other company or that other company together with a company or
companies related to it are entitled to exercise or control the
exercise of more than one half of the voting power at any general
meeting of the company; or
( e ) the businesses of the companies have been so carried on
that the separate business of each company, or a substantial part
thereof, is not readily identifiable; or
( f ) there is another company to which both companies are
related;
and "related company" has a corresponding meaning.
(6) For the purposes of this section "company" includes any body
which is liable to be wound up under the Companies Acts. COMPANIES (AMENDMENT) ACT 1990 - SECT 5
Effect of petition to appoint examiner petition on creditors and
others.
5.-(1) During the period beginning with the presentation of a for
the appointment of an examiner to a company and (subject to section
18 (3) or(4)) ending on the expiry of three months from that date
or on the withdrawal or refusal of the petition, whichever first
happens, the company shall be deemed to be under the protection of
the court. Y
(2) For so long as a company is under the protection of the court
in a case under this Act, the following provisions shall have
effect
( a ) no proceedings for the winding-up of the company may be
commenced or resolution for winding-up passed in relation to that
company and any resolution so passed shall be of no effect;
( b ) no receiver over any part of the property or undertaking of
the company shall be appointed, or, if so appointed before the
presentation of a petition under section 2, shall, subject to
section 6, be able to act;
( c ) no attachment, sequestration, distress or execution shall be
put into force against the property or effects of the company,
except with the consent of the examiner;
( d ) where any claim against the company is secured by a charge
on the whole or any part of the property, effects or income of
the company, no action may be taken to realise the whole or any
part of such security, except with the consent of the examiner;
( e ) no steps may be taken to repossess goods in the company's
possession under any hire-purchase agreement (within the meaning of
section 11 (8)), except with the consent of the examiner;
( f ) where, under any enactment, rule of law or otherwise, any
person other than the company is liable to pay all or any part of
the debts of the company-
(i) no attachment, sequestration, distress or execution shall be put
into force against the property or effects of such person in
respect of the debts of the company, and
(ii) no proceedings of any sort may be commenced against such
person in respect of the debts of the company.
(3) Subject to subsection (2), no other proceedings in relation to
the company may be commenced except by leave of the court and
subject to such terms as the court may impose and the court may
onthe application of the examiner make such order as it thinks
proper in relation to any existing proceedings including an order to
stay such proceedings.
(4) Complaints concerning the conduct of the affairs of the company
while it is under the protection of the court shall not constitute
a basis for the making of an order for relief under section 205
of the Principal Act. COMPANIES (AMENDMENT) ACT 1990 - SECT 6
Effect on receiver or provisional liquidator of order appointing
examiner.
6.-(1) Where the court appoints an examiner to a company and a
receiver stands appointed to the whole or any part of the property
or undertaking of that company the court may make such order as it
thinks fit including an order as to any or all of the following
matters-
( a ) that the receiver shall cease to act as such from a date
specified by the court,
( b ) that the receiver shall, from a date specified by the
court, act as such only in respect of certain assets specified by
the court,
( c ) directing the receiver to deliver all books, papers and
other records, which relate to the property or undertaking of the
company (or any part thereof) and are in his possession or control,
to the examiner within a period to be specified by the court,
( d ) directing the receiver to give the examiner full particulars
of all his dealings with the property or undertaking of the
company.
(2) Where the court appoints an examiner to a company and a
provisional liquidator stands appointed to that company, the court
may make such order as it thinks fit including an order as to any
or all of the following matters-
( a ) that the provisional liquidator be appointed as examiner of
the company,
( b ) appointing some other person as examiner of the company,
( c ) that the provisional liquidator shall cease to act as such
from the date specified by the court,
( d ) directing the provisional liquidator to deliver all books,
papers and other records, which relate to the property or
undertaking of the company or any part thereof and are in his
possession or control, to the examiner within a period to be
specified by the court,
( e ) directing the provisional liquidator to give the examiner
full particulars of all his dealings with the property or
undertaking of the company.
(3) In deciding whether to make an order under subsection (1) ( a
) or (b), or subsection (2) (c), the court shall have regard to
whether the making of the order would be likely to facilitate the
survival of the company, and the whole or any part of its
undertaking, as a going concern.
(4) Where the court makes an order under subsection (1) or (2), it
may, for the purpose of giving full effect to the order, include
such conditions in the order and make such ancillary or other
orders as it deems fit.
(5) Where a petition is presented under section 2 in respect of a
company at a date subsequent to the presentation of a petition for
the winding-up of that company, but before a provisional liquidator
has been appointed or an order made for its winding-up, both
petitions shall be heard together. COMPANIES (AMENDMENT) ACT 1990 - SECT 7
Powers of an examiner.
7.-(1) Any provision of the Companies Acts relating to the rights
and powers of an auditor of a company and the supplying of
information to and co-operation with such auditor shall, with the
necessary modifications, apply to an examiner.
(2) Notwithstanding any provision of the Companies Acts relating to
notice of general meetings, an examiner shall have power to convene,
set the agenda for, and preside at meetings of the board of
directors and general meetings of the company to which he is
appointed and to propose motions or resolutions and to give reports
to such meetings.
(3) An examiner shall be entitled to reasonable notice of, to
attend and be heard at, all meetings of the board of directors of
a company and all general meetings of the company to which he is
appointed.
(4) For the purpose of subsection (3) "reasonable notice" shall be
deemed to include a description of the business to be transacted at
any such meeting.
(5) Where an examiner becomes aware of any actual or proposed act,
omission, course of conduct, decision or contract, by or on behalf
of the company to which he has been appointed, its officers,
employees, members or creditors or by any other person in relation
to the income, assets or liabilities of that company which, in his
opinion, is or is likely to be to the detriment of that company,
or any interested party, he shall, subject to the rights of parties
acquiring an interest in good faith and for value in such income,
assets or liabilities, have full power to take whatever steps are
necessary to halt, prevent or rectify the effects of such act,
omission, course of conduct, decision or contract.
(6) The examiner may apply to the court to determine any question
arising in the course of his office, or for the exercise in
relation to the company of all or any of the powers which the
court may exercise under this Act, upon the application to it of
any member, contributory, creditor or director of a company.
(7) The examiner shall, if so directed by the court, have power to
ascertain and agree claims against the company to which he has been
appointed. COMPANIES (AMENDMENT) ACT 1990 - SECT 8
Production of documents and evidence.
8.-(1) It shall be the duty of all officers and agents of the
company or a related company to produce to the examiner all books
and documents of or relating to any such company which are in
their custody or power, to attend before him when required so to
do and otherwise to give to him all assistance in connection with
his functions which they are reasonably able to give.
(2) If the examiner considers that a person other than an officer
or agent of any such company is or may be in possession of any
information concerning its affairs, he may require that person to
produce to him any books or documents in his custody or power
relating to the company, to attend before him and otherwise to give
him all assistance in connection with his functions which he is
reasonably able to give; and it shall be the duty of that person
to comply with the requirement.
(3) If the examiner has reasonable grounds for believing that a
director, or past director, of any such company maintains or has
maintained a bank account of any description, whether alone or
jointly with another person and whether in the State or elsewhere,
into or out of which there has been paid-
( a ) any money which has resulted from or been used in the
financing of any transaction, arrangement or agreement particulars of
which have not been disclosed in the accounts of any company for
any financial year as required by law; or
( b ) any money which has been in any way connected with any act
or omission, or series of acts or omissions, which on the part of
that director constituted misconduct (whether fraudulent or not)
towards that company or its members;
the examiner may require the director to produce to him all
documents in the director's possession, or under his control,
relating to that bank account; and in this subsection "bank account"
includes an account with any person exempt by virtue of section 7
(4) of the Central Bank Act, 1971, from the requirement of holding
a licence under section 9 of that Act.
(4) An examiner may examine on oath, either by word of mouth or
on written interrogatories, the officers and agents of such company
or other person as is mentioned in subsection (1) or (2) in
relation to its affairs and may-
( a ) administer an oath accordingly,
( b ) reduce the answers of such person to writing and require
him to sign them.
(5) If any officer or agent of such company or other person
refuses to produce to the examiner any book or document which it
is his duty under this section so to produce, refuses to attend
before the examiner when required so to do or refuses to answer
any question which is put to him by the examiner with respect to
the affairs of the company, the examiner may certify the refusal
under his hand to the court, and the court may thereupon enquire
into the case and, after hearing any witnesses who may be produced
against or on behalf of the alleged offender and any statement
which may be offered in defence, punish the offender in like manner
as if he had been guilty of contempt of court.
(6) In this section, any reference to officers or to agents shall
include past, as well as present, officers or agents, as the case
may be, and "agents", in relation to a company, shall include the
bankers and solicitors of the company and any persons employed by
the company as auditors, whether those persons are or are not
officers of the company. COMPANIES (AMENDMENT) ACT 1990 - SECT 9
Further powers of court.
9.-(1) Where it appears to the court, on the application of the
examiner, that, having regard to the matters referred to in
subsection (2), it is just and equitable to do so, it may make an
order that all or any of the functions or powers which are vested
in or exercisable by the directors (whether by virtue of the
memorandum or articles of association of the company or by law or
otherwise) shall be per formable or exercisable only by the
examiner.
(2) The matters to which the court is to have regard for the
purpose of subsection (1) are-
( a ) that the affairs of the company are being conducted, or are
likely to be conducted, in a manner which is calculated or likely
to prejudice the interests of the company or of its employees or
of its creditors as a whole, or
( b ) that it is expedient, for the purpose of preserving the
assets of the company or of safeguarding the interests of the
company or of its employees or of its creditors as a whole, that
the carrying on of the business of the company by, or the exercise
of the powers of, its directors or management should be curtailed
or regulated in any particular respect, or
( c ) that the company, or its directors, have resolved that such
an order should be sought, or
( d ) any other matter in relation to the company the court
thinks relevant.
(3) Where the court makes an order under subsection (1), it may,
for the purpose of giving full effect to the order, include such
conditions in the order and make such ancillary or other orders as
it sees fit.
(4) Without prejudice to the generality of subsections (1) and (3),
an order under this section may provide that the examiner shall
have all or any of the powers that he would have if he were a
liquidator appointed by the court in respect of the company and, where such order so provides, the court shall have all the powers
that it would have if it had made a winding-up order and appointed
a liquidator in respect of the company concerned. COMPANIES (AMENDMENT) ACT 1990 - SECT 10
Incurring of certain liabilities incurred examiner.
10.-(1) Where an order is made under this Act for the winding
liabilities by up of the company or a receiver is appointed, any
by the company during the protection period which are referred to
in subsection (2) shall be treated as expenses properly incurred,
for the purpose of section 29, by the examiner.
(2) The liabilities referred to in subsection (1) are those
certified by the examiner at the time they are incurred, to have
been incurred in circumstances where, in the opinion of the
examiner, the survival of the company as a going concern during the
protection period would otherwise be seriously prejudiced.
(3) In this section, "protection period" means the period, beginning
with the appointment of an examiner, during which the company is
under the protection of the court. COMPANIES (AMENDMENT) ACT 1990 - SECT 11
Power to deal with charged property, etc.
11.-(1) Where, on an application by the examiner, the court is
satisfied that the disposal (with or without other assets) of any
property of the company which is subject to a security which, as
created, was a floating charge or the exercise by the examiner of
his powers in relation to such property would be likely to
facilitate the survival of the whole or any part of the company as
a going concern, the court may by order authorise the examiner to
dispose of the property, or exercise his powers in relation to it,
as the case may be, as if it were not subject to the security.
(2) Where, on an application by the examiner, the court is
satisfied that the disposal (with or without other assets) of-
( a ) any property of the company subject to a security other
than a security to which subsection (1) applies, or
( b ) any goods in the possession of the company under a
hire-purchase agreement,
would be likely to facilitate the survival of the whole or any
part of the company as a going concern, the court may by order
authorise the examiner to dispose of the property as if it were
not subject to the security or to dispose of the goods as if all
rights of the owner under the hire-purchase agreement were vested in
the company.
(3) Where property is disposed of under subsection (1), the holder
of the security shall have the same priority in respect of any
property of the company directly or indirectly representing the
property disposed of as he would have had in respect of the
property subject to the security.
(4) It shall be a condition of an order under subsection (2) that-
( a ) the net proceeds of the disposal, and
( b ) where those proceeds are less than such amount as may be
determined by the court to be the net amount which would be
realised on a sale of the property or goods in the open market by
a willing vendor, such sums as may be required to make good the
deficiency,
shall be applied towards discharging the sums secured by the
security or payable under the hire-purchase agreement.
(5) Where a condition imposed in pursuance of subsection (4) relates
to two or more securities, that condition requires the net proceeds
of the disposal and, where paragraph ( b ) of that subsection
applies, the sums mentioned in that paragraph to be applied towards
the sums secured by those securities in the order of their
priorities.
(6) An office copy of an order under subsection (1) or (2) in
relation to a security shall, within 7 days after the making of
the order, be delivered by the examiner to the registrar of
companies.
(7) If the examiner without reasonable excuse fails to comply with
subsection (6), he shall be liable to a fine not exceeding £1,000.
(8) References in this section to a hire-purchase agreement include
a conditional sale agreement, a retention of title agreement and an
agreement for the bailment of goods which is capable of subsisting
for more than 3 months. COMPANIES (AMENDMENT) ACT 1990 - SECT 12
Notification of appointment of examiner.
12.-(1) Where a petition is presented under section 2, notice of
the petition in the prescribed form shall, within 3 days after its
presentation, he delivered by the petitioner to the registrar of
companies.
( 2 ) ( a ) An examiner shall, within the time limits specified
in paragraph ( b ), cause to be published in Iris Oifigi il and
in at least two daily newspapers circulating in the district in
which the registered office or principal place of business of the
company is situate a notice of-
(i) his appointment and the date thereof, and
(ii) the date, if any, set for the hearing of the matters arising
out of the report to be prepared by the examiner under section 15.
( b ) The time limits referred to in paragraph ( a ) are-
(i) twenty-one days after his appointment in the case of Iris
Oifigi il, and
(ii) three days after his appointment in the other case referred to
in that paragraph.
(3) An examiner shall, within three days after his appointment,
deliver to the registrar of companies a copy of the order
appointing him.
(4) Where a company is, by virtue of section 5, deemed to be
under the protection of the court, every invoice, order for goods
or business letter issued by or on behalf of the company, being a
document on or in which the name of the company appears, shall
contain the statement "under the protection of the court".
(5) A person who fails to comply with the provisions of this
section shall be guilty of an offence and shall be liable, on
summary conviction, to a fine not exceeding £1,000 and, on
conviction on indictment, to a fine not exceeding £10,000. COMPANIES (AMENDMENT) ACT 1990 - SECT 13
General Provisions as to examiners.
13.-(1) An examiner may resign or, on cause shown, be removed by
the court.
(2) If for any reason a vacancy occurs in the office of examiner,
the court may by order fill the vacancy.
(3) An application for an order under subsection (2) may be made
by-
( a ) any committee of creditors established under section 21, or
( b ) the company or any interested party.
(4) An examiner shall be described by the style of "the examiner"
of the particular company in respect of which he is appointed and
not by his individual name.
(5) The acts of an examiner shall be valid notwithstanding any
defects that may afterwards be discovered in his appointment or
qualification.
(6) An examiner shall be personally liable on any contract entered
into by him in the performance of his functions (whether such
contract is entered into by him in the name of the company or in
his own name as examiner or otherwise) unless the contract provides
that he is not to be personally liable on such contract, and he
shall be entitled in respect of that liability to indemnity out of
the assets; but nothing in this subsection shall be taken as
limiting any right to indemnity which he would have apart from this
subsection, or as limiting his liability on contracts entered into
without authority or as conferring any right to indemnity in respect
of that liability.
(7) A company to which an examiner has been appointed or an
interested party may apply to the court for the determination of
any question arising out of the performance or otherwise by the
examiner of his functions. COMPANIES (AMENDMENT) ACT 1990 - SECT 14
Information to be given when examiner appointed.
14.-(1) The directors of a company to which an examiner has been
appointed shall, within 7 days of the appointment, cause to be made
out, verified by affidavit and submitted to the examiner a statement
in accordance with this section as to the affairs of the company.
(2) The statement shall, in so far as is reasonably possible to do
so, show as at the date of the examiner's appointment particulars
of the company's assets, debts and liabilities (including contingent
and prospective liabilities), the names and addresses of its
creditors, the securities held by them respectively, the dates when
the securities were respectively given and such further information
as may be prescribed or as the court may direct.
(3) A person to whom subsection (1) applies who makes default in
complying with the requirements of this section shall be guilty of
an offence and shall be liable, on summary conviction, to a fine
not exceeding £1,000 and, on conviction on indictment, to a fine
not exceeding £10,000. COMPANIES (AMENDMENT) ACT 1990 - SECT 15
Examination of affairs of company.
15.-(1) It shall be the duty of an examiner to conduct an
examination of the affairs of the company to which he is appointed
and report to the court, within 21 days of his appointment or such
longer period as the court may allow, the results of his
examination in accordance with section 16.
(2) Notwithstanding any other provision of this Act the court may
impose on the examiner such other duties as it deems appropriate.
(3) The examiner shall deliver a copy of his report under this
section to the company on the same day as his delivery of such
report to the court.
(4) The examiner shall also supply a copy of his report under this
section to any interested party on written application, provided that
such supply may, if the court so directs, be subject to the
omission of such parts of the report as the court thinks fit.
(5) The court may, in particular, give a direction under subsection
(4) if it considers that the inclusion of certain information in
the report to be supplied under that subsection would be likely to
prejudice the survival of the company, or the whole or any part of
its undertaking. COMPANIES (AMENDMENT) ACT 1990 - SECT 16
Examiner's report.
16.-The examiner's report under section 15 shall comprise the
following-
( a ) the names and permanent addresses of the officers of the
company and, in so far as the examiner can establish, any person
in accordance with whose directions or instructions the directors of
the company are accustomed to act,
( b ) the names of any other bodies corporate of which the
directors of the company are also directors,
( c ) a statement as to the affairs of the company, showing,
insofar as is reasonably possible to do so, particulars of the
company's assets, debts and liabilities (including contingent and
prospective liabilities) as at the latest practicable date, the names
and addresses of its creditors, the securities held by them
respectively and the dates when the securities were respectively
given,
( d ) whether in the opinion of the examiner any deficiency
between the assets and the liabilities of the company has been
satisfactorily accounted for or, if not, whether there is evidence
of a substantial disappearance of property that is not adequately
accounted for,
( e ) a statement of opinion by the examiner as to whether the
company, and the whole or any part of its undertaking, would be
capable of survival as a going concern and a statement of the
conditions which he feels are essential to ensure such survival,
whether as regards the internal management and controls of the
company or otherwise,
( f ) his opinion as to whether the formulation, acceptance and
confirmation of proposals for a compromise or scheme of arrangement
would facilitate such survival,
( g ) whether, in his opinion, an attempt to continue the whole
or any part of the undertaking of the company would be likely to
be more advantageous to the members as a whole and the creditors
as a whole, than a winding-up of the company,
( h ) recommendations as to the course he thinks should be taken
in relation to the company including, if warranted, draft proposals
for a compromise or scheme of arrangement,
( i ) his opinion as to whether the facts disclosed would warrant
further enquiries under sections 33 and 34,
( j ) such other matters as the examiner thinks relevant or the
court directs, and
( k ) his opinion as to whether his work would be assisted by a
direction of the court extending the role or membership of any
creditors' committee referred to in section 21. COMPANIES (AMENDMENT) ACT 1990 - SECT 17
Hearing of matters arising from examiner's report.
17.-(1) Where, in a report made under section 15, the examiner
expresses the opinion that-
( a ) the whole or any part of the undertaking of the company to
which he has been appointed would not be capable of survival as a
going concern, or
( b ) the formulation, acceptance, or confirmation of proposals for
a compromise or scheme of arrangement would not facilitate such
survival, or
( c ) an attempt to continue the whole or part of the undertaking
of the company would not be likely to be more advantageous to the
members as a whole, or the creditors as a whole, than a winding-up
of the company, or
( d ) there is evidence of a substantial disappearance of property
that is not adequately accounted for, or of other serious
irregularities in relation to the company's affairs,
the court shall, as soon as may be after the receipt of the
examiner's report, hold a hearing to consider matters arising out of
the report.
(2) The following parties shall be entitled to appear and be heard
at a hearing under subsection (1)-
( a ) the examiner,
( b ) the company,
( c ) any interested party,
( d ) any person who is referred to in the report in relation to
the matters mentioned in subsection (1) (d).
(3) Following a hearing under this section, the court may make such
order or orders as it deems fit.
(4) Without prejudice to the generality of subsection (3), an order
under that subsection may include an order for-
( a ) the discharge from the protection of the court of the whole
or any part of the assets of the company,
( b ) the imposition of such terms and conditions as it sees fit
for the continuance of the protection of the court,
( c ) the winding-up of the company,
( d ) the sale of the whole or any part of the undertaking of
the company on such terms and conditions, including terms and
conditions relating to the distribution of the proceeds of such
sale, as the court sees fit, and, if necessary for that purpose,
the appointment of a receiver,
( e ) the formulation by the examiner of proposals for a
compromise or scheme of arrangement,
( f ) the summoning of the meetings mentioned in this Act for the
purpose of considering proposals for a compromise or scheme of
arrangement,
( g ) the calling, holding and conduct of a meeting of the board
of directors, or a general meeting of the company, to consider such
matters as the court shall direct.
(5) On the making of an order under this section, the examiner or
such other person as the court may direct shall deliver an office
copy of the order to the registrar of companies for registration.
(6) Where the court makes an order for the winding-up of a company
under this Act, such a winding-up shall be deemed to have commenced
on the date of the making of the order, unless the court otherwise
orders. COMPANIES (AMENDMENT) ACT 1990 - SECT 18
Further report by examiner.
18.-(1) Where, in the opinion of the examiner-
( a ) the whole or any part of the undertaking of the company
would be capable of survival as a going concern, and
( b ) an attempt to continue the whole or any part of the
undertaking of the company would be likely to be more advantageous
to the members as a whole, and to the creditors as a whole, than
a winding-up of the company, and
( c ) the formulation, acceptance and confirmation of proposals for
a compromise or scheme of arrangement would facilitate such survival,
the examiner shall formulate proposals for a compromise or scheme of
arrangement.
(2) Notwithstanding any provision of the Companies Acts relating to
notice of general meetings, (but subject to notice of not less than
three days in any case) the examiner shall convene and preside at
such meetings of members and creditors as he thinks proper, to
consider such proposals and report thereon to the court within 42
days of his appointment or such longer period as the court may
allow, in accordance with section 19.
(3) Where, on the application of the examiner, the court is
satisfied that the examiner would be unable to report to the court
within the period of three months referred to in section 5 (1) but
that he would be able to make a report if that period were
extended, the court may by order extend that period by not more
than 30 days to enable him to do so.
(4) Where the examiner has submitted a report under this section to
the court and, but for this subsection, the period mentioned in
section 5 (1) (and any extended period allowed under subsection (3)
of this section) would expire, the court may, of its own motion or
on the application of the examiner, extend the period concerned by
such period as the court considers necessary to enable it to take a decision under section 24.
(5) The examiner shall deliver a copy of his report under this
section-
( a ) to the company on the same day as his delivery of such
report to the court, and ( b ) to any interested party on written application,
provided that such delivery under paragraph (b) may, if the court
so directs, be subject to the omission of such parts of the report
as the court thinks fit.
(6) The court may, in particular, give a direction under subsection
(5) (b) if it considers that the inclusion of certain information
in the report to be delivered under that paragraph would be likely
to prejudice the survival of the company, or the whole or any part
of its undertaking. COMPANIES (AMENDMENT) ACT 1990 - SECT 19
Examiner's report under section 18.
19.-An examiner's report under section 18 shall include-
( a ) the proposals placed before the required meetings,
( b ) any modification of those proposals adopted at any of those
meetings,
( c ) the outcome of each of the required meetings,
( d ) the recommendation of the committee of creditors, if any,
( e ) a statement of the assets and liabilities (including
contingent and prospective liabilities) of the company as at the
date of his report,
( f ) a list of the creditors of the company, the amount owing
to each such creditor, the nature and value of any security held
by any such creditor, and the priority status of any such creditor
under section 285 of the Principal Act or any other statutory
provision or rule of law,
( g ) a list of the officers of the company,
( h ) his recommendations,
( i ) such other matters as the examiner deems appropriate or the
court directs. COMPANIES (AMENDMENT) ACT 1990 - SECT 20
Repudiation of certain contracts.
20.-(1) Where proposals for a compromise or scheme of arrangement
are to be formulated in relation to a company, the company may,
subject to the approval of the court, affirm or repudiate any
contract under which some element of performance other than payment
remains to be rendered both by the company and the other
contracting party or parties.
(2) Any person who suffers loss or damage as a result of such
repudiation shall stand as an unsecured creditor for the amount of
such loss or damage.
(3) In order to facilitate the formulation, consideration or
confirmation of a compromise or scheme of arrangement, the court may
hold a hearing and make an order determining the amount of any
such loss or damage and the amount so determined shall be due by
the company to the creditor as a judgement debt.
(4) Where the examiner is not a party to an application to the
court for the purposes of subsection (1), the company shall serve
notice of such application on the examiner and the examiner may
appear and be heard on the bearing of any such application.
(5) Where the court approves the affirmation or repudiation of a
contract under this section, it may in giving such approval make
such orders as it thinks fit for the purposes of giving full
effect to its approval including orders as to notice to, or
declaring the rights of, any party affected by such affirmation or
repudiation. COMPANIES (AMENDMENT) ACT 1990 - SECT 21
Appointment of creditors' committee.
21.-(1) An examiner may, and if so directed by the court shall,
appoint a committee of creditors to assist him in the performance
of his functions.
(2) Save as otherwise directed by the court, a committee appointed
under subsection (1) shall consist of not more than five members
and shall include the holders of the three largest unsecured claims
who are willing to serve.
(3) The examiner shall provide the committee with a copy of any
proposals for a compromise or scheme of arrangement and the
committee may express an opinion on the proposals on its own behalf
or on behalf of the creditors or classes of creditors represented
thereon.
(4) As soon as practicable after the appointment of a committee
under subsection (1) the examiner shall meet with the committee to
transact such business as may be necessary. COMPANIES (AMENDMENT) ACT 1990 - SECT 22
Contents of proposals.
22.-(1) Proposals for a compromise or scheme of arrangement shall-
( a ) specify each class of members and creditors of the company,
( b ) specify any class of members and creditors whose interests
or claims will not be impaired by the proposals,
( c ) specify any class of members and creditors whose interests
or claims will be impaired by the proposals,
( d ) provide equal treatment for each claim or interest of a
particular class unless the holder of a particular claim or interest
agrees to less favourable treatment,
( e ) provide for the implementation of the proposals,
( f ) if the examiner considers it necessary or desirable to do
so to facilitate the survival of the company, and the whole or any
part of its undertaking, as a going concern, specify whatever
changes should be made in relation to the management or direction
of the company,
( g ) if the examiner considers it necessary or desirable as
aforesaid, specify any changes he considers should be made in the
memorandum or articles of the company, whether as regards the
management or direction of the company or otherwise,
( h ) include such other matters as the examiner deems appropriate.
(2) A statement of the assets and liabilities (including contingent
and prospective liabilities) of the company as at the date of the
proposals shall be attached to each copy of the proposals to be
submitted to meetings of members and creditors under section 23.
(3) There shall also be attached to each such copy of the
proposals a description of the estimated financial outcome of a
winding-up of the company for each class of members and creditors.
(4) The court may direct that the proposals include whatever other
provisions it deems fit.
(5) For the purposes of this section and sections 24 and 25, a
creditor's claim against a company is impaired if he receives less
in payment of his claim than the full amount due in respect of
the claim at the date of presentation of the petition for the
appointment of the examiner.
(6) For the purposes of this section and sections 24 and 25, the
interest of a member of a company in a company is impaired if-
( a ) the nominal value of his shareholding in the company is
reduced,
( b ) where he is entitled to a fixed dividend in respect of his
shareholding in the company, the amount of that dividend is reduced,
( c ) he is deprived of all or any part of the rights accruing
to him by virtue of his shareholding in the company,
( d ) his percentage interest in the total issued share capital of
the company is reduced, or
( e ) he is deprived of his shareholding in the company. COMPANIES (AMENDMENT) ACT 1990 - SECT 23
Consideration by members and creditors of proposals.
23.-(1) This section applies to a meeting of members or creditors
or any class of members or creditors summoned to consider proposals
for a compromise or scheme of arrangement.
(2) At a meeting to which this section applies a modification of
the proposals may be put to the meeting but may only be accepted
with the consent of the examiner.
(3) Proposals shall be deemed to have been accepted by a meeting
of members or of a class of members if a majority of the votes
validly cast at that meeting, whether in person or by proxy, are
cast in favour of the resolution for the proposals.
(4) Proposals shall be deemed to have been accepted by a meeting
of creditors or of a class of creditors when a majority in number
representing a majority in value of the claims represented at that
meeting have voted, either in person or by proxy, in favour of the
resolution for the proposals.
( 5 ) ( a ) Where a State authority is a creditor of the
company, such authority shall be entitled to accept proposals under
this section notwithstanding
(i) that any claim of such authority as a creditor would be
impaired under the proposals, or
(ii) any other enactment.
( b ) In this subsection, "State authority" means the State, a
Minister of the Government or the Revenue Commissioners.
(6) section 144 of the Principal Act shall apply to any resolution
to which subsection (3) or (4) relates which is passed at any
adjourned meeting.
(7) section 202, subsections (2) to (6), of The Principal Act
shall, with the necessary modifications, apply to meetings held under
this section.
(8) With every notice summoning a meeting to which this section
applies which is sent to a creditor or member, there shall be sent
also a statement explaining the effect of the compromise or scheme
of arrangement and in particular stating any material interests of
the directors of the company, whether as directors or as members or
as creditors of the company or otherwise and the effect thereon of
the compromise or arrangement, insofar as it is different from the
effect on the like interest of other persons. COMPANIES (AMENDMENT) ACT 1990 - SECT 24
Confirmation of proposals.
24.-(1) The report of the examiner under section 18 shall be set
down for consideration by the court as soon as may be after
receipt of the report by the court.
(2) The following persons may appear and be heard at a hearing
under subsection (1)-
( a ) the company,
( b ) the examiner,
( c ) any creditor or member whose claim or interest would be
impaired if the proposals were implemented.
(3) At a hearing under subsection (1) the court may, as it thinks
proper, subject to the provisions of this section and section 25,
confirm, confirm subject to modifications, or refuse to confirm the
proposals.
(4) The court shall not confirm any proposals-
( a ) unless at least one class of members and one class of
creditors whose interests or claims would be impaired by
implementation of the proposals have accepted the proposals, or
( b ) if the sole or primary purpose of the proposals is the
avoidance of payment of tax due, or
( c ) unless the court is satisfied that-
(i) the proposals are fair and equitable in relation to any class
of members or creditors that has not accepted the proposals and
whose interests or claims would be impaired by implementation, and
(ii) the proposals are not unfairly prejudicial to the interests of
any interested party.
(5) Where the court confirms proposals (with or without
modification), the proposals shall be binding on all the members or
class or classes of members, as the case may be, affected by the
proposal and also on the company.
(6) Where the court confirms proposals (with or without
modification), the proposals shall, notwithstanding any other
enactment, be binding on all the creditors or the class or classes
of creditors, as the case may be, affected by the proposals in
respect of any claim or claims against the company and any person
other than the company who, under any statute, enactment, rule of
law or otherwise, is liable for all or any part of the debts of
the company.
(7) Any alterations in, additions to or deletions from the
memorandum and articles of the company which are specified in the
proposals shall, after confirmation of the proposals by the court
and notwithstanding any other provisions of the Companies Acts, take
effect from a date fixed by the court.
(8) Where the court confirms proposals under this section it may
make such orders for the implementation of its decision as it deems
fit.
(9) A compromise or scheme of arrangement, proposals for which have
been confirmed under this section shall come into effect from a
date fixed by the court, which date shall be not later than 21
days from the date of their confirmation.
(10) On the confirmation of proposals a copy of any order made by
the court under this section shall be delivered by the examiner, or
by such person as the court may direct, to the registrar of
companies for registration.
(11) Where-
( a ) the court refuses to confirm proposals under this section,
or
( b ) the report of an examiner under section 18 concludes that,
following the required meetings of members and creditors of a
company under this Act, it has not been possible to reach agreement
on a compromise or scheme of arrangement,
the court may, if it considers it just and equitable to do so,
make an order for the winding-up of the company, or any other
order as it deems fit. COMPANIES (AMENDMENT) ACT 1990 - SECT 25
Objection to confirmation by court of proposals.
25.-(1) At a hearing under section 24 in relation to proposals a
member or creditor whose interest or claim would be impaired by the
proposals may object in particular to their confirmation by the
court on any of the following grounds-
( a ) that there was some material irregularity at or in relation
to a meeting to which section 23 applies,
( b ) that acceptance of the proposals by the meeting was obtained
by improper means,
( c ) that the proposals were put forward for an improper purpose,
( d ) that the proposals unfairly prejudice the interests of the
objector.
(2) Any person who voted to accept the proposals may not object to
their confirmation by the court except on the grounds-
( a ) that such acceptance was obtained by improper means, or
( b ) that after voting to accept the proposals he became aware
that the proposals were put forward for an improper purpose.
(3) Where the court upholds an objection under this section, the
court may make such order as it deems fit, including an order that
the decision of any meeting be set aside and an order that any
meeting be reconvened. COMPANIES (AMENDMENT) ACT 1990 - SECT 26
Cessation of protection of company and termination of appointment of
examiner.
26.-(1) Subject to section 5, the protection deemed to be granted
to a company under that section shall cease-
( a ) on the coming into effect of a compromise or scheme of
arrangement under this Act, or
( b ) on such earlier date as the court may direct.
(2) Where a company ceases to be under the protection of the
court, the appointment of the examiner shall terminate on the date
of such cessation. COMPANIES (AMENDMENT) ACT 1990 - SECT 27
Revocation.
27.-The company or any interested party may, within 180 days after
the confirmation of the proposals by the court, apply to the court
for revocation of that confirmation on the grounds that it was
procured by fraud and the court, if satisfied that such was the
case, may revoke that confirmation on such terms and conditions,
particularly with regard to the protection of the rights of parties
acquiring interests or property in good faith and for value in
reliance on that confirmation, as it deems fit. COMPANIES (AMENDMENT) ACT 1990 - SECT 28
Disqualification of examiners.
28.-(1) A person shall not be qualified to be appointed or act as
an examiner of a company if he would not be qualified to act as
its liquidator.
(2) A person who acts as examiner of a company while disqualified
under this section shall be guilty of an offence, and shall be
liable, on summary conviction, to a fine not exceeding £1,000 and,
on conviction on indictment, to a fine not exceeding £10,000. COMPANIES (AMENDMENT) ACT 1990 - SECT 29
Costs and remuneration of examiners.
29.-(1) The court may from time to time make such orders as it
thinks proper for payment of the remuneration and costs of, and
reasonable expenses properly incurred by, an examiner.
(2) Unless the court otherwise orders, the remuneration, costs and
expenses of an examiner shall be paid and the examiner shall be
entitled to be indemnified in respect thereof out of the revenue of
the business of the company to which he has been appointed, or the
proceeds of realisation of the assets (including investments).
(3) The remuneration, costs and expenses of an examiner which have
been sanctioned by order of the court shall be paid in full and
shall be paid before any other claim, secured or unsecured, under
any compromise or scheme of arrangement or in any receivership or
winding-up of the company to which he has been appointed.
(4) The functions of an examiner may be performed by him with the
assistance of persons appointed or employed by him for that purpose
provided that an examiner shall, insofar as is reasonably possible,
make use of the services of the staff and facilities of the
company to which he has been appointed to assist him in the
performance of his functions.
(5) In considering any matter relating to the costs, expenses and
remuneration of an examiner the court shall have particular regard
to the proviso to subsection (4). COMPANIES (AMENDMENT) ACT 1990 - SECT 30
Publicity.
30.-(1) An examiner or, where appropriate, such other person as the
court may direct, shall, within 14 days after the delivery to the
registrar of companies of every order made under section 17 or 24,
cause to be published in Iris Oifigi il notice of such delivery.
(2) Where a person fails to comply with this section, that person,
and where that person is a company, the company and every officer
of the company who is in default, shall be guilty of an offence
and shall be liable to a fine not exceeding £1,000.
(3) Proceedings in relation to an offence under this section may be
brought and prosecuted by the registrar of companies. COMPANIES (AMENDMENT) ACT 1990 - SECT 31
Hearing of proceedings otherwise than in public.
31.-The whole or part of any proceedings under this Act may be
heard otherwise than in public if the court, in the interests of
justice, considers that the interests of the company concerned or of
its creditors as a whole so require. COMPANIES (AMENDMENT) ACT 1990 - SECT 32
No lien over company's books, records etc.
32.-Where the court has appointed an examiner, no person shall be
entitled as against the examiner to withhold possession of any deed,
instrument, or other document belonging to the company, or the books
of account, receipts, bills, invoices, or other papers of a like
nature relating to the accounts or trade, dealings or business of
the company, or to claim any lien thereon provided that-
( a ) where a mortgage, charge or pledge has been created by the
deposit of any such document or paper with a person, the production
of the document or paper to the examiner by the person shall be
without prejudice to the person's rights under the mortgage or
charge (other than any right to possession of the document or
paper),
( b ) where by virtue of this section an examiner has possession
of any document or papers of a receiver or that a receiver is
entitled to examine, the examiner shall, unless the court otherwise
orders, make the document or papers available for inspection by the
receiver at all reasonable times. COMPANIES (AMENDMENT) ACT 1990 - SECT 33
Civil liability of persons concerned for fraudulent trading of
company.
33.-(1) If in the course of proceedings under this Act it appears
that-
( a ) any person was, while an officer of the company, knowingly
a party to the carrying on of any business of the company in a
reckless manner; or
( b ) any person was knowingly a party to the carrying on of any
business of the company with intent to defraud creditors of the
company, or creditors of any other person or for any fraudulent
purpose;
the court, on the application of the examiner, or any creditor or
contributory